Smith v State

Smith v State
1943 OK CR 41
135 P.2d 1006
76 Okl.Cr. 211
Decided: 03/31/1943
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error-Punishment for Disposing of Mortgaged Property Reduced From Jail Sentence to Fine.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

On rehearing.

Judgment of district court modified and affirmed.

For prior opinion, see 70 Okla. Cr. 81, 104 P.2d 1009.

David Tant, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

PER CURIAM. An opinion was rendered in this case on the 17th day of July, 1940, dismissing the appeal for the reason that no briefs had been filed, nor appearance made for oral argument at the time the cause was set for hearing, as provided by the rules of this court. Mandate was issued on the 29th day of August, 1940, and on the 20th day of September, 1940, on application of counsel for defendant, an order was made recalling the mandate. No further action was taken until the 13th day of January, 1943, when a new mandate was issued and forwarded to the court clerk of Oklahoma county.

Page 212

In the meantime, counsel for defendant had on the 19th day of October, 1940, filed a brief in behalf of the defendant, which was served upon the Attorney General. No reply brief has been filed by the state.

An examination of the record reveals that the brief filed by the defendant at the time the order was made on January 13, 1943, re-issuing the mandate, was not considered.

It is contended by defendant that the court erred in overruling the demurrer to the information. Defendant was charged with disposing of mortgaged property with intent to deprive the mortgage holder of his security. We have carefully examined the information and the authorities cited by defendant to substantiate his contention. We are of the opinion that the information was sufficient as against a general demurrer.

We have carefully reviewed the facts, and our attention has been called by defendant to the fact that all of the mortgage indebtedness has heretofore been paid by defendant. Without further reviewing these facts in this opinion, we think that the ends of justice will best be met by modifying the judgment and sentence of 120 days in jail, to a fine of $120 and costs; and, it is therefore ordered that the mandate heretofore issued on January 13, 1943, be recalled, and that a new mandate issue immediately in compliance with the order here made.

The judgment and sentence of the district court of Oklahoma county, as modified, is affirmed.